ICO publishes final version of Age Appropriate Design Code

The code allows for a 12 month transition period once in force and should be considered at the design stage by all providers of online services.

The Information Commissioner’s Office has published its final Age Appropriate Design Code. The code comprises of a set of 15 standards that online services should meet to protect children’s privacy. It is a statutory code of practice required by section 123 of the Data Protection Act 2018. Once the code is in force, the ICO must take account of its provisions when exercising functions under data protection legislation. The code is the first of its kind, but similar reform is being considered in the USA, Europe and by the Organisation for Economic Co-operation and Development.

The code sets out the standards expected of those responsible for designing, developing or providing online services like apps, connected toys, social media platforms, online games, educational websites and streaming services. It covers services likely to be accessed by children and which process their personal information. The focus is on providing default settings which ensures that children have the best possible access to online services whilst minimising data collection and use, by default.

In summary, the code will require digital services to automatically provide children with a built-in baseline of data protection whenever they download a new app, game or visit a website. That means privacy settings should be set to high by default and nudge techniques should not be used to encourage children to weaken their settings. Location settings should also be switched off by default. Data collection and sharing should be minimised and profiling that can allow children to be served up targeted content should also be switched off by default. 

The code states that the best interests of the child should be a primary consideration when designing and developing online services. In addition, it gives practical guidance on data protection safeguards that ensure online services are appropriate for use by children.

The 15 standards are:

Best interests of the child: the best interests of the child should be a primary consideration when designing and developing online services likely to be accessed by a child.

Data protection impact assessments: undertake a DPIA to assess and mitigate risks to the rights and freedoms of children who are likely to access a service, which arise from the data processing. Take into account differing ages, capacities and development needs and ensure that the DPIA builds in compliance with the code.

Age appropriate application: take a risk-based approach to recognising the age of individual users and ensure the standards in the code are effectively applied to child users. Either establish age with a level of certainty that is appropriate to the risks to the rights and freedoms of children that arise from the data processing, or apply the standards in the code to all users instead.

Transparency: the privacy information provided to users, and other published terms, policies and community standards, must be concise, prominent and in clear language suited to the age of the child. Provide additional specific ‘bite-sized’ explanations about how personal data is used at the point that use is activated.

Detrimental use of data: do not use children’s personal data in ways that have been shown to be detrimental to their wellbeing, or that go against industry codes of practice, other regulatory provisions or government advice.

Policies and community standards: uphold published terms, policies and community standards (including but not limited to privacy policies, age restriction, behaviour rules and content policies).

Default settings: settings must be ‘high privacy’ by default (unless an online service provider can demonstrate a compelling reason for a different default setting, taking account of the best interests of the child).

Data minimisation: collect and retain only the minimum amount of personal data needed need to provide the elements of the service in which a child is actively and knowingly engaged. Give children separate choices over which elements they wish to activate.

Data sharing: do not disclose children’s data unless a compelling reason to do so can be demonstrated, taking account of the best interests of the child.

Geolocation: switch geolocation options off by default (unless there is a compelling reason for geolocation to be switched on by default, taking account of the best interests of the child). Provide an obvious sign for children when location tracking is active. Options which make a child’s location visible to others must default back to ‘off’ at the end of each session.

Parental controls: if parental controls are provided, give the child age appropriate information about this. If an online service allows a parent or carer to monitor their child’s online activity or track their location, provide an obvious sign to the child when they are being monitored.

Profiling: switch options which use profiling ‘off’ by default (unless there is a compelling reason for profiling to be on by default, taking account of the best interests of the child). Only allow profiling if there are appropriate measures in place to protect the child from any harmful effects (in particular, being fed content that is detrimental to their health or wellbeing).

Nudge techniques: do not use nudge techniques to lead or encourage children to provide unnecessary personal data or weaken or turn off their privacy protections.

Connected toys and devices: if a connected toy or device is provided, ensure effective tools are provided to enable conformity with the code.

Online tools: provide prominent and accessible tools to help children exercise their data protection rights and report concerns.

The first draft of the code went out to consultation in April 2019, after which the following changes were made:
  • Clarification of the need to adopt a risk-based and proportionate approach to age verification.
  • Clarification of what services are considered to fall within the code because they are “likely to be accessed by children”.
  • Clarified the ICO’s approach to enforcement as risk-based and proportionate.
  • FAQs specific to the media industry.
  • The introduction of a 12 month transition period – the maximum allowed.
The ICO submitted the code to the Secretary of State in November 2019. The Secretary of State will now need to lay the code before Parliament for its approval as soon as is reasonably practicable.  

Before that, the UK government intends to notify the European Commission of the code under the requirements of the Technical Standards and Regulations Directive 2015/1535/EU, and observe the resulting three month standstill period. Once the code has been laid it will remain before Parliament for 40 sitting days. If there are no objections, it will come into force 21 days after that. The code then provides a transition period of 12 months, which will give organisations a year to update their practices before the code comes into full effect. The ICO expects this to be by autumn 2021. The ICO intends to engage with organisations to help them understand the code and prepare for its implementation.

Published: 2020-01-22T10:00:00

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